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On Tuesday, July 17, 2012, the Supreme Court of Ohio launched an expanded news program – Court News Ohio – that features stories about the Ohio judicial system. This archived page on the Supreme Court’s website only displays case summaries that occurred before that date. Cases that were summarized on July 17 and thereafter can be found at www.courtnewsohio.gov.

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(Sept. 24, 2003) The Supreme Court of Ohio today held that Ohio's current state law that prohibits
carrying concealed weapons does not infringe the "right to bear arms for
defense and security" guaranteed in the state constitution.

Today's
decision reversed earlier rulings by the Hamilton County Common Pleas Court and
1st District Court of Appeals that held the concealed carry law unconstitutional
and prohibited police from enforcing it in Hamilton County. Those rulings have
been under stay pending their review by the Supreme Court.

The case arose
when a group of individuals and organizations in Cincinnati, including Chuck Klein
and Patrick Feely, petitioned the local courts to declare the state concealed
carry law unconstitutional. The law broadly prohibits carrying concealed weapons,
but allows persons arrested and charged for carrying a concealed weapon to win
acquittal by proving one of several "affirmative defenses." Among those
defenses are having "reasonable cause to fear a criminal attack" while
engaged in lawful activity and working in a lawful business or occupation in which
the defendant is "particularly susceptible to criminal attack."

The
lower courts agreed with arguments by Klein, Feely and their co-plaintiffs that
the statutory language defining the affirmative defenses was so vague and police
enforcement of the statute so undiscriminating that it was practically impossible
for citizens to exercise their right to bear arms without being subject to arrest,
invasive searches, jail and the risks and expenses of a criminal trial in order
to prove that they had been acting lawfully all along.

Writing for the
Supreme Court, Justice Pfeifer affirmed the historic right of Ohioans to bear
arms but added that "however fundamental and entrenched in the constitutional
heritage of our state, the right to bear arms is not absolute."

He
noted that state legislators adopted Ohio's original statute that prohibited carrying
concealed weapons in 1859  only eight years after the state's second constitution,
including a reaffirmed "right to bear arms," was ratified. Justice Pfeifer
also pointed out that the proceedings of two subsequent constitutional conventions,
in 1873 to 1874 and 1912, reflect no debate about perceived conflicts between
the constitutional right to bear arms and a statutory prohibition against concealed
carry.

In a 1920 decision (State v. Nieto), Pfeifer wrote, the Supreme
Court reviewed and upheld the constitutionality of the contemporary concealed
weapons law, finding it to be a "proper exercise of the police power of the
state," and holding that "(t)he statute does not operate as a prohibition
against carrying weapons, but as a regulation of the manner of carrying them."

Thus, the majority observed, Klein and the other plaintiffs "ask us
to declare unconstitutional a statute that has been part of our legal heritage
since 1859, that has been amended by our General Assembly time and again without
fundamental modification, that did not arouse the concern of two different constitutional
conventions and that has been held by this court to be constitutional."

With
regard to the specific constitutional challenges asserted by Klein and his co-plaintiffs,
the court held that the concealed carry statute is a "reasonable regulation,"
and that the affirmative defenses set forth in the statute are not unconstitutionally
vague because they are "capable of being understood by a person of common
intelligence and provide sufficient standards to prevent arbitrary and discriminatory
enforcement."

"The General Assembly has determined that prohibiting
the carrying of concealed weapons helps maintain an orderly and safe society,"
wrote Justice Pfeifer. "We conclude that that goal and the means used to
attain it are reasonable. We hold that (the statute) does not unconstitutionally
infringe the right to bear arms; there is no constitutional right to bear concealed
weapons."

The Klein lawsuit also challenged the constitutionality
of two other sections of the Ohio Revised Code that set state licensing and training
requirements for private investigators and security guards who wish to carry firearms.
Because the lower courts ruled that the underlying concealed carry law was unconstitutional,
they did not reach these issues. In today's decision, the Supreme Court remanded
the issue of constitutionality of the firearms training and licensing statutes
to the 1st District Court of Appeals for review consistent with today's
holding.

Justice O'Connor entered a dissenting opinion that was joined by
Justice Stratton. In it she asserted that, because the concealed carry law regulates
the manner in which Ohioans may exercise a fundamental right, the statute should
be held constitutional only if it is "narrowly tailored to serve a compelling
government interest and leaves open other means of exercising the right."
That is not the case, she contended, because the current concealed carry statute
allows police to arrest anyone they find carrying a concealed weapon, while the
only means it offers those who seek to exercise their right to bear arms in a
concealed manner is to go to trial and prove one of the affirmative defenses.

"This
is as offensive as a statute allowing the arrest of anyone who speaks in public,
but permitting the speaker to prove at trial that the speech was constitutionally
protected," wrote Justice O'Connor.

She concluded that the statute
"would be constitutional only if the state bore the burden of proving that
the defendant's actions fell outside those protected as fundamental rights. The
statute as written does not permit this. It would require a rewriting of the statute,
which is activity solely within the ambit of the legislature."